Summary: the Council was at fault because it did not consult Mr Y’s appointed attorney when it carried out the annual review of his care package or discuss the proposed change with him. However this fault did not affect the outcome of the review. The Council decided to remove part of the care package for Mr Y to have access to the community because he was no longer able to leave his home and was cared for in bed.

The complaint

1. Ms X made this complaint on behalf of her father, Mr Y. I shall refer to Mr Y’s wife as “Mrs Y” and to his adult son as “Mr A” in this statement .
2. Ms X complains that the Council did not follow the correct procedure when it carried out a planned annual review of Mr Y’s care package in October 2022. In particular, she says the social worker did not involve her or her brother, Mr A. Mr A has Lasting Power of Attorney for health and welfare. Ms X says they had both attended previous reviews.
3. Ms X says she is the designated family contact. She says the Council also failed to seek input from the care agency which supports Mr Y or from his GP during the review.
4. Following the review, Mr Y’s care package was reduced to remove four hours of support for him to have access to the community. Ms X says the Council did not take reasonable steps to discuss and agree the proposed revision to Mr Y’s Care Plan. She says she only found out about the reduction in hours from the care agency.

Back to top

The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

7. I have discussed the complaint with Ms X. I considered the Council’s response to my enquiries and the relevant adult social care case records.
8. I gave Ms X and the Council an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

9. The Care Act 2014 gives councils a legal duty to provide a care and support plan when a person has two or more eligible needs. The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
10. The eligible need relevant to this complaint is:
• making use of necessary facilities or services in the local community including public transport and recreational facilities or services. 
11. The Care Act Statutory Guidance says councils should consider the adult’s ability to get around in the community safely and consider their ability to use such facilities as public transport, shops or recreational facilities when considering the impact on their wellbeing. Local authorities are not responsible for the provision of NHS services, such as patient transport, but they should consider needs for support when the adult attends healthcare appointments.

Review of Care and Support Plans

12. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. The Care and Support Statutory Guidance says councils should review plans at least every 12 months, or sooner if the person, or someone acting on their behalf, makes a reasonable request for a review.
13. The Statutory Guidance says the review process must involve the person needing care and also the carer where feasible. The purpose of the review is to help identify if the person’s needs have changed which may lead to a reassessment. The review must not be used as a mechanism to arbitrarily reduce the level of a person’s personal budget.
14. In all cases, the method of review should, wherever reasonably possible, be agreed with the person and must involve the adult to whom the plan relates, any carer the adult has and any person the adult asks the authority to involve. The local authority should take all appropriate measures to ensure their involvement. 
15. If a review leads to a revision of the Care and Support Plan, the council must involve the person, their carer and any other persons the adult may want involved. The council must take all reasonable steps to agree the revision. 

Mental capacity and the role of the attorney

16. The Mental Capacity Act 2005 provides the legal framework for making decisions for people who lack the mental capacity to make particular decisions for themselves. The Act (and Code of Practice) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
17. The Code of Practice says that when social care staff are involved in preparing a care plan for someone who has appointed a personal welfare attorney, they must first assess whether the donor has capacity to agree to the care plan or to parts of it. If the donor lacks capacity, professionals must then consult the attorney and get their agreement to the care plan.

The background to this complaint

18. Mr Y is in his eighties and lives at home with his wife, Mrs Y, and their adult son, Mr A. Mr Y has several physical health conditions which severely restrict his daily living activities and mobility. He needs assistance from others to meet all his personal care needs. He has four double-handled care calls every day. Mrs Y and their adult children provide additional care and support.
19. The adult social care records note that Mr Y does not speak English as his first language. He has limited ability to communicate in English and needs an interpreter to support him. Mrs Y and Mr A advocate on his behalf.
20. At the previous annual review in October 2021, the social worker noted that Mr Y used to attend a day centre twice a week for two hours but stopped going before the COVID-19 pandemic. The Care and Support Plan included four hours for care assistants to take him to the day centre. Mr Y said he did not wish to go back to the day centre.
21. In October 2021 Mr Y could be taken out in his wheelchair. Mr A said his father would like to use the four hours allocated for the day centre for a care assistant to take him out in his wheelchair twice a week. The social worker amended the Care and Support Plan to include four hours per week for one care assistant to take Mr Y out in the community. The Council approved the Plan and an amount was included in the Personal Budget for the care agency to provide this service.

Annual review – October 2022

22. Mrs Y is recorded as Mr Y’s next of kin and the main nominated contact in the Council’s case records. They also note that Mr A has Lasting Power of Attorney (LPA) for Mr Y’s health and welfare.
23. On 13 October the social worker spoke to Mrs Y and the care agency to arrange a date for the planned annual review of Mr Y’s care and support needs. The Council says the social worker also tried to telephone Mr A to invite him to the meeting. However Mr A did not answer the call and there was no facility to leave a voicemail message on his mobile phone. No further attempt was made to contact Mr A before the review meeting.
24. On 19 October the social worker visited Mr Y’s home to carry out the planned review. The Care Coordinator from the care agency could not attend but one of Mr Y’s regular care assistants was present. An interpreter who speaks the same language as Mr & Mrs Y also attended.
25. The Care and Support Plan produced after the review says Mr Y was in bed and did not contribute to the discussion. It says Mrs Y advocated on his behalf with support from the interpreter. Regarding Mr Y’s mental capacity, the Care and Support Plan says:

“Mr [Y] with the assistance of his interpreter can reach and make decisions about his care and support needs.”

26. However this is contradicted by a case note the social worker made on 14 November 2022 to record the final outcome of the review. It says:

“[Mr Y] appeared not to understand the purpose of his package of care review he is deemed not to have capacity.”

and

“[…] he has no capacity to make decisions as he is not able to understand, retain, weigh and communicate his decision.”

27. In response to my enquiries, the Council said Mr A came home while the review was taking place. According to the Council, the social worker asked Mrs Y if she would like her son to stay and contribute to the review. Mrs Y told the social worker Mr A had to go to work. She said she was happy to go ahead without him because she knew all about her husband’s care and support needs. This discussion is not documented in the case records I have seen.
28. Ms X told me Mr Y’s care assistant does not speak the same language as her parents. He speaks limited English. She questioned how he could contribute effectively to the review in these circumstances. The Council said the interpreter was able to communicate with the care assistant and he appeared to understand and contribute to the discussion. The care assistant showed the social worker Mr Y’s equipment when he was asked to do so. He did not mention he was having any difficulty in understanding or following the discussion.
29. The notes say Mrs Y told the social worker that Mr Y had not been able to access the community for the past six months since he was discharged from hospital. Mr Y has a neurological condition and his health had deteriorated. Mrs Y told the social worker the family arranged patient transport from the NHS to take Mr Y to hospital and other medical appointments.
30. On 11 November Mr Y’s GP sent a patient summary to the social worker. I have not seen the summary but the GP said in the covering email that Mr Y was bedbound.
31. On 22 November the social worker recorded the final outcome of the review. The four hours allocated for access to the community was removed on the grounds that Mr Y was cared for in bed and could no longer go out. This was approved by a manager.
32. On 28 November the social worker sent an email to Mr Y’s care agency asking them to end the four hours weekly support for Mr Y to access the community. Two other changes to the Care and Support Plan were implemented on the same date:
• An extra 15 minutes were added to two of the four daily care calls to give the care assistant more time to help Mr Y eat at lunchtime and teatime;
• Two hours per week were added to the care package as a flexible sitting service so someone could stay with Mr Y to allow Mrs Y to go out.

My analysis

33. The evidence shows the Council sought input from Mr Y’s GP and the care agency for the review. As the Care Coordinator could not attend the review meeting, it was appropriate for one of Mr Y’s care assistants to participate instead. It is also clear from the records that the social worker contacted Mr Y’s GP and considered a medical report before completing the review. I find no evidence of fault here.
34. The Care & Support Plan produced after the October 2022 review said Mr Y had capacity to make decisions about his care and support needs. However the social worker’s November 2022 case note recording the outcome of the review said Mr Y did not have capacity. So there is contradictory information in the case records about whether Mr Y had mental capacity at the time of the review. That is fault.
35. On balance, I consider the social worker’s November 2022 case note is likely to be the more reliable record. In reaching that view, I note that the statement in the October 2022 Care and Support Plan about Mr Y’s capacity is identical to the wording in the October 2021 Plan. The social worker may simply have “cut and paste” this section across from the old Plan to the new Plan without amending it to reflect that Mr Y did not have mental capacity. That is fault.
36. The Mental Capacity Act Code of Practice says where social care staff decide someone lacks capacity to make a decision relating to care and support, they must consult the person’s appointed attorney and seek their agreement to any changes to the care package. In this case, Mr A was Mr Y’s attorney for health and welfare.
37. I do not consider the social worker made sufficient efforts to try to contact Mr A before the review to invite him to the meeting. Although the Council told me Mr A arrived during the meeting, and Mrs Y said she was happy to proceed without him staying, this is not documented in the records made at the time. Having considered the Code of Practice, I find it was fault not to consult Mr A during the review when Mr Y lacked capacity and Mr A was his registered attorney for health and welfare. Equally the Council should have discussed the proposed changes to the Care and Support Plan with Mr A and tried to seek his agreement to them. It was fault not to do that.
38. Did the failure to involve Mr A in the review cause the claimed injustice? Ms X says she and her brother would have advocated for Mr Y to keep the four hours in the Care & Support Plan allocated for access to the community. However I am not persuaded the outcome would have been any different if Ms X and Mr A had been consulted. Mrs Y told the social worker her husband had not been able to go out in the community in the six months prior to the review due to his deteriorating health. His GP confirmed he was being cared for in bed. In these circumstances, the Council was entitled to remove the four hours for access to the community because Mr Y could no longer make use of them. I do not consider any representations from Ms X or Mr A would have been likely to change this decision although I agree Mr A should have been more involved in the review.

Back to top

Final decision

39. I have completed the investigation and found the Council was at fault but this did not cause the injustice claimed by Ms X.

Back to top

Investigator's decision on behalf of the Ombudsman